- Medical negligence claim dismissed after the court found it was pursued by a disqualified attorney.
- The High Court declared all proceedings initiated by the disqualified attorney invalid and held him personally liable for punitive costs.
- The Hawks and the Eastern Cape Director of Public Prosecutions were asked to consider a criminal investigation and possible prosecution
A medical negligence claim against the Eastern Cape Department of Health has been dismissed after the High Court in Mthatha discovered that it was brought by a man who lost his right to practise law more than a decade ago.
In a scathing judgment, Acting Judge M Notyesi declared that court documents drafted and filed by Kenneth Phuthuma Ntila were unlawful, set the proceedings aside as a nullity and ordered that his conduct be referred to the Hawks and the Eastern Cape Director of Public Prosecutions for possible criminal investigation.
The case arose from an action brought by Nomatamsanqa Tolbadi against the MEC for Health, Eastern Cape, alleging medical negligence.
Questions over firm's authority revealed broader problems
Tolbadi instituted the action in June 2023 through Luxolo Fodi Incorporated. The MEC challenged the firm's authority to act by delivering a notice in terms of Rule 7(1) of the Uniform Rules of Court. After receiving what was described as an inadequate response, the department successfully obtained a court order compelling compliance and warning that the claim could be struck out if the failure continued.
When there was still no proper response, the MEC launched an application under Rule 30A(1)(b) seeking to have the claim struck out. During the hearing, counsel for the MEC informed the court that Ntila, who appeared on behalf of Tolbadi, had been struck from the roll of practising attorneys and therefore had no right of appearance.
Counsel also told the court that Luxolo Fodi Incorporated no longer operated because its director, Luxolo Fodi, had since been appointed as a magistrate.
Ntila did not provide a Fidelity Fund Certificate
Ntila denied that he had ever been struck from the roll and insisted he held a valid Fidelity Fund Certificate. Judge Notyesi adjourned the proceedings to allow him to produce the certificate. However, when the matter resumed, Ntila failed to return to court despite his name being called repeatedly.
The judge recorded that Ntila had insisted he possessed a valid Fidelity Fund Certificate and had never been struck from the roll, but "when the matter resumed, however, Mr Ntila was nowhere to be found."
Legal Practice Council confirmed Ntila was struck off
The court subsequently received an affidavit from the MEC's attorney and a report from the Eastern Cape Legal Practice Council.
The report confirmed that Ntila had been struck from the roll of practising attorneys on 5 December 2013 following an application by the former Law Society of the Northern Provinces. It also confirmed that his last Fidelity Fund Certificate had been issued in May 2012 and that none had been issued since.
The Legal Practice Council further confirmed that Luxolo Fodi Incorporated had been closed following Fodi's appointment as a magistrate.
Fodi denied any knowledge of Tolbadi's litigation, denied participating in the proceedings and denied that Ntila had ever been the firm's director.
Proceedings were never properly authorised
Judge Notyesi found that the MEC had been entitled to challenge the firm's authority and that the proceedings had never been properly authorised.
The judge said the failure to produce a valid power of attorney or other proof of authority was significant, particularly because the law firm no longer existed and Fodi had disavowed any involvement in the matter.
The court also found that most of the court documents had been signed by Ntila or purportedly by Fodi, despite Fodi denying any knowledge of the litigation.
Judge Notyesi concluded that the proceedings instituted under the case number had not been authorised and that the claim should therefore be struck out for failure to comply with the Rule 7(1) process and the earlier court order.
Judge strongly criticises Ntila's conduct
Judge Notyesi delivered a blistering assessment of Ntila's conduct. "The truth is that Mr Ntila was struck from the roll of practising attorneys on 5 December 2013," the judge said. "Mr Ntila is a fraudster, a liar, and a deceitful person. No doubt, he cannot be trusted and should be investigated for fraud."
Judge Notyesi found that Ntila had drafted, or caused the drafting of, the summons and particulars of claim, signed court documents, consulted with clients and appeared before the court while falsely presenting himself as a practising attorney.
The judge also found that Ntila had falsely claimed to possess a valid Fidelity Fund Certificate and had continued misleading the court despite overwhelming evidence to the contrary.
According to the judgment, his conduct represented "a betrayal of the profession" and demonstrated that he had shown no remorse since being struck from the roll.
Court rules proceedings invalid
Judge Notyesi held that once an attorney has been struck from the roll, that person is no longer entitled to practise law or represent clients before the courts.
After examining the court file, the judge found that the summons had been issued in the name of a law firm that no longer existed and had been signed by a person who had no legal authority to act.
The court held that proceedings instituted by a person not entitled to practise law are irregular and may, depending on the circumstances, be declared a nullity.
In this case, Judge Notyesi found that the ignored court order compelling compliance, the absence of authority to institute the proceedings, the use of a non-existent law firm and the signature of court documents by a disqualified person together amounted to "a failure of justice" and that "the irregularity is gross."
The judge therefore declared the proceedings a nullity and set them aside.
Hawks and prosecutors asked to investigate further
Judge Notyesi ordered Ntila to pay the costs of the application personally on the attorney-and-client scale. The Registrar was also directed to notify all registrars in the Eastern Cape High Court that Ntila is not permitted to appear before any court in South Africa.
The Hawks were directed to consider whether Ntila's continued appearances in court and allegations that he had collected money from members of the public while presenting himself as an attorney amounted to criminal offences requiring investigation.
The Eastern Cape Director of Public Prosecutions was likewise directed to consider whether his conduct should be prosecuted.
Judge Notyesi also ordered that the judgment be circulated to judges' secretaries, the Bar Council, attorneys' associations and other stakeholders in the legal profession.
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